Another one bites the dust: Netflix deals with another trade mark law suit

Netflix faces another trade mark suit from Chooseco in relation to an interactive episode on its latest hit series ‘Black Mirror. Black Mirror is a British anthology science fiction television series created by Charlie Brooker. It examines modern society by exploring the unanticipated consequences of new technologies.

The lawsuit involves an interactive episode released in December 2018 called ‘Bandersnatch’. The interactive element of this episode relates to the fact that viewers were able to decide the outcome for the main protagonist.

Chooseco is a publisher of the ‘Choose Your Own Adventure’ gamebooks that targets young adults. It allows its readers to choose what happens to the characters in the books.

Prior to the release of the episode, Netflix had tried to negotiate obtaining a licence from Chooseco to use its trade marked phrase ‘Choose your own adventure’ in 2016. In January 2016, Chooseco had advised that the episodes had dark themes and elements that would not be suitable for its target audience. As a result, Chooseco had refused to be involved with the Black Mirror episode. Nevertheless, Netflix did what it seems to be doing more frequently and released its interactive episode. Netflix did this by featuring the phrase in the script of the ‘Bandersnatch’ episode. This was done despite the fact that they had received a cease and desist notice that stated that the “Choose Your Own Adventure” phrase featured in the episode’s script was used in reference to a fictional book and in the marketing of the show.

Chooseco stated that since Netflix has released its episode incorporating the infringed mark, the brand has suffered by being associated with the episode.  Sharon Gilligan (co-founder and publisher at Chooseco) has stated that “[w]e have received an unprecedented amount of outreach from people who believed we were associated with the creation of this film, including parents who were concerned that we had aligned the CYOA brand they knew and loved with content that surprised and offended them,”[1].

Chooseco is seeking cost and damages of $25 million from Netflix for this infringement. It seems that Netflix may have an expensive year ahead of it.


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